92 Decision Citation: BVA 92-10833
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-49 891 ) DATE
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THE ISSUES
1. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for
ulcers.
2. Entitlement to service connection for sinusitis.
ATTORNEY FOR THE BOARD
G. P. Hanson, Counsel
INTRODUCTION
The veteran had active military service from January 1966 to
September 1968.
In a rating decision of November 1976, the Regional Office
(hereinafter RO) denied the veteran's claim of entitlement
to service connection for ulcers, concluding that such a
disability had not been shown by the evidence of record. In
a subsequent rating decision, dated in March 1989, the
previous denial of entitlement to service connection for
ulcers was confirmed and continued. In each case, the
veteran was provided timely notice of the adverse
determinations, and he failed to file a timely notice of
disagreement.
In April 1990, the veteran requested that his claim of
entitlement to service connection for ulcers be reopened.
In a rating decision of January 1991, issued by the
Louisville, Kentucky, RO, it was determined that additional
evidence which was received in connection with the current
claim was neither new nor material. That same decision
denied entitlement to service connection for sinusitis. The
notice of disagreement relative to these matters was
received in May 1991. The statement of the case was issued
in August 1991. The substantive appeal was received in
November 1991. The case was docketed at the Board in
December 1991. The veteran represents himself in this
matter, and his appeal is ready for appellate review.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that documentary evidence which became
available since the RO last considered his claim of
entitlement to service connection for ulcers is both new and
material, that it was not previously of record, that it
substantiates that he developed ulcers in service, that his
claim should be considered reopened, and that service
connection should be allowed for ulcers. In substance, he
also contends that his sinusitis developed in service and
that it has been symptomatic ever since.
DECISION OF THE BOARD
For the reasons and bases hereinafter set forth, the Board
finds that additional evidence which became available in
connection with the current appeal is not new and material
and that a basis does not exist upon which to reopen the
veteran's claim of entitlement to service connection for
ulcers. In addition, the Board finds that the preponderance
of the evidence is against the veteran's claim of
entitlement to service connection for sinusitis.
FINDINGS OF FACT
1. Entitlement to service connection for ulcers was denied
by the RO in a rating decision of March 1989.
2. The evidence received subsequent to the March 1989
rating decision does not tend to demonstrate that ulcers,
first shown many years post service, have any relationship
to the veteran's service or became manifested within the
one-year period following his separation from service.
3. The veteran's claimed sinusitis was not shown in service
and, if currently shown, is not of service orgin.
CONCLUSIONS OF LAW
1. The evidence received since the RO denied entitlement to
service connection for ulcers in March 1989 is not new and
material and the veteran's claim for that benefit has not
been reopened. 38 U.S.C. §§ 5107, 5108
2. The decision by the RO in March 1989 denying the
veteran's claim of entitlement to service connection for
ulcers is final. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5108;
38 C.F.R. §§ 3.303, 3.307, 3.309
3. The veteran's claimed sinusitis was not incurred in or
aggravated by service. 38 U.S.C. §§ 1110, 5107.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
In order to establish entitlement to service connection for
ulcers, they must be shown to have been incurred in or
aggravated by service or manifested to a compensable degree
within the one-year period following the veteran's
separation from service. 38 U.S.C. §§ 1101, 1110, 1112,
1113; 38 C.F.R. §§ 3.307, 3.309.
For the showing of chronic disease in service there is
required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
"chronic." Continuity of symptomatology is required where
the condition noted during service is not, in fact, shown to
be chronic or where the diagnosis of chronicity may be
legitimately questioned. When the fact of chronicity in
service is not adequately supported, then a showing of
continuity after discharge is required to support the
claim. 38 C.F.R. § 3.303(b)
Service connection for the veteran's ulcers was denied by
the RO in a rating decision of March 1989. The service
medical records show that in March 1968 the veteran was
hospitalized following complaints of vomiting, nausea,
fever, etc. An upper gastrointestinal series taken during a
subsequent five-day period of hospitalization revealed there
was a deformity of the duodenal bulb without active ulcer
disease. During his hospital stay, he was provided a liquid
diet and gradually advanced to a full diet. Physical
examination conducted at the time of his hospital release
was within normal limits, he was discharged to duty having
experienced a 10-pound weight increase, it was recommended
that he remain on a bland diet, and he was to be followed at
periodic intervals as an outpatient. The diagnoses were
viral gastroenteritis and pylorospasm. The report of
physical examination conducted at the time of his separtion
from military service was silent in reference to
manifestations characteristic of ulcers.
A report of a physical examination of the veteran conducted
by the Department of Veterans Affairs (VA) in September 1976
was also silent with regard to ulcers. A summary of private
hospitalization from December 1985 until January 1986
includes a history of the veteran having been treated for
peptic ulcer disease for approximately the past 10 years.
This is many years postservice, and service connection was
denied for the postservice ulcerous condition. The March
1989 decision, in the absence of a timely appeal, is final.
The evidence added to the record since March 1989 shows that
the veteran was treated at a VA hospital from April to June
1981 for disabilities, to include peptic ulcer, inactive.
The related report of this hospitalization indicated that he
had been seen by a gastrointestinal consultant who had
diagnosed peptic ulcer disease probably without an active
ulcer but with scarring of the duodenal bulb, suggestive of
recurrent duodenal ulcer disease. Other reports show that
the veteran had received additional VA treatment for a
number of disabilities, to include ulcers, during the period
July 1989 to October 1990. Testing conducted during this
period included a finding in May 1990 that the veteran had
peptic ulcer disease and that Tagamet was to be continued.
In the absence of a timely notice of disagreement from an
adverse determination, a decision by the RO is final and it
is not subject to revision on the same factual basis. If
new and material evidence is presented or secured with
respect to a claim which has been disallowed and became
final, the Secretary of Veterans Affairs will review any
further evidence to see if it is new and material and, if
so, a decision on the merits shall then be reached.
38 U.S.C. §§ 5108, 7105
After a review of the evidence, we find that the additional
documentary material which became available in connection
with the veteran's request to reopen this claim is not new
and material. New evidence means more than the evidence
which was not previously of record. To be new, the
additional evidence must be more than cumulative and it must
have some probative value in reference to the issue before
the Board. Colvin v. Derwinski, U.S. Vet. App. No. 90-196
(March 8, 1991). Further, the additional evidence is not
material. Assuming, without deciding that the additional
evidence is relevant and probative, there is no reasonable
possibility that the additional evidence, when viewed in the
context of all the evidence, both old and new, would change
the outcome. See, Colvin, supra, Smith v. Derwinski, U.S.
Vet. App. No. 89-13 (March 15, 1991).
The medical reports received since March 1989 provide only
repetitive and cumulative evidence of additional post
service treatment for ulcers which are first shown to have
become manifested many years subsequent to the veteran's
period of military service and as such, they are of limited
probative value. Hence, the fact remains that the newly
submitted evidence, in the context of the entire record,
does not make it reasonably possible to relate the inception
of ulcer disease to service.
With reference to the issue of entitlement to service
connection for sinusitis, we are satisfied that the
veteran's claim of service connection for that disability is
well grounded in that it is plausible within the meaning of
38 U.S.C. § 5107(a). Lastly, we are satisfied that all
relevant facts are on file and that the VA has met its duty
to assist the veteran in development of facts pertinent to
his claim, as mandated by 38 U.S.C. § 5107(a).
The law governing our disposition of this issue states that
service connection for sinusitis is warranted if it is shown
to have been incurred in or aggravated in service. 38
U.S.C. § 1110
We have considered the allegations made in this case that
sinusitis was developed in service. However, there is no
substantiating evidence to this effect, for the service
medical records are silent in reference to any complaints,
findings or diagnosis of sinusitis. Subsequent to service,
the veteran was treated and evaluated for a number of
unrelated disabilities beginning in approximately September
1976 and, in each case, no diagnosis of sinusitis was ever
made. Accordingly, the Board is without a sufficient
factual basis upon which to predicate a grant of entitlement
to service connection for claimed sinusitis.
ORDER
New and material evidence not having been submitted to
reopen a claim of entitlement to service connection for
ulcers, that benefit sought on appeal is denied. In
addition, service connection for sinusitis is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
M. CHEEK THOMAS J. DANNAHER
EUGENE A. O'NEILL
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266 (1991),
a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the
agency of original jurisdiction on or after November 18,
1988. Veterans' Judicial Review Act, Pub. L. No. 100-687,
§ 402 (1988). The date which appears on the face of this
decision constitutes the date of mailing and the copy of
this decision which you have received is your notice of the
action taken on your appeal by the Board of Veterans'
Appeals.